Who is Liable? Workplace Discrimination, Cat’s Paw Theory, and SCOTUS

“On March 1, 2011, the U.S. Supreme Court held that an employer may be liable for the discriminatory motives of a supervisor who influences but does not make the ultimate employment decision. The Court’s ruling will impact employment discrimination claims where multiple individuals are claimed to have made, caused, or influenced the ultimate employment decision…”

Here’s what lawyers and law firms are writing about the March 1, 2011, U.S. Supreme Court decision in Staub v. Proctor Hospital, a case with broad implication for employer liability in workplace discrimination. The ‘cat’s paw’ theory:

Supreme Court Holds That Company May Be Liable For The Discriminatory Motives Of Non-Decision Makers (by Fisher & Phillips LLP):

“In employment discrimination claims, plaintiffs must establish that the employer took an adverse employment action based, in whole or in part, on their protected status, such as age, sex or religion among many others. Employees typically prove their claims by demonstrating that the ultimate decision maker had a discriminatory motive for the employment action. But where the ultimate decision maker is admittedly unbiased, several courts have allowed employees to use a subordinate bias or ‘cat’s paw’ theory of liability to prove their claims.

On March 1, 2011, the U.S. Supreme Court held that an employer may be liable for the discriminatory motives of a supervisor who influences but does not make the ultimate employment decision. The Court’s ruling will impact employment discrimination claims where multiple individuals are claimed to have made, caused, or influenced the ultimate employment decision…” Read entire analysis»

U.S. Supreme Court Broadens Employer Liability by Upholding “Cat’s Paw” Theory in Employment Discrimination Case (by Duane Morris LLP):

“The ‘cat’s paw’ theory refers to a 17th-century French fable conceived by Aesop, in which a monkey persuades a cat to reach into a fire for chestnuts. After the cat pulls the chestnuts from the fire, burning his paw in the process, the monkey makes off with the chestnuts and leaves the cat with nothing. The monkey used the cat to accomplish his own purposes. The analogy to employment discrimination is the supervisor who avoids the dirty work of firing the employee, but influences the person who delivers the ‘bad news.’

In Staub v. Proctor Hospital, the fired employee sued Proctor Hospital for anti-military bias under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which prohibits employment discrimination based on military membership or obligation. The employee showed evidence that two supervisors disliked his role in the U.S. Army Reserve, which occasionally took him away from work. The U.S. Supreme Court held the employer liable, even though the two biased supervisors did not make the ultimate decision to fire the employee. The Court attributed responsibility to the “earlier agent[s]” because his firing was the intended consequence of the supervisors’ discriminatory conduct…” Read entire analysis»

U.S. Supreme Court Expands Cat’s Paw Theory of Liability in Discrimination Cases (by Morrison & Foerster):

“Authored by Justice Antonin Scalia, the U.S. Supreme Court issued a decision in Staub v. Proctor Hosp. (Mar. 1, 2011, No. 09-400) 562 U.S. ____ [2011 U.S. LEXIS 1900], holding that an employer may be liable for employment discrimination even where the decision maker had no discriminatory intent and was merely functioning as the ‘cat’s paw’ for a supervisor who did have such discriminatory intent. Justices Roberts, Kennedy, Ginsburg, Breyer and Sotomayor joined in the decision; Justice Alito wrote a concurring opinion in which Justice Thomas joined, agreeing with the result reached by the majority but for a different reason. Justice Kagan did not participate…

Lessons for Employers

Before you stick your hand in the fire, make sure the monkey—or the supervisor—who asks you to do so is not using you as a cat’s paw. If you are not careful, you will get burned.

Even though the opinion is narrow, the fact that Justice Scalia wrote this pro-employee opinion and every participating Justice agreed with the result suggest that the holding may end up being applied more broadly.

Thus, employers must ensure policies and practices are in place to confirm fairness and validity of criticism or discipline taken or recommended by supervisors before relying on those actions or recommendations to effect an adverse employment action…” Read entire analysis»